reopening hearing in New York

2012Under the circumstances, there is substantial evidence supporting the Board’s conclusion that claimant did not sufficiently allege an unanticipated change in his medical condition warranting the reopening of his claim (see Matter of Thomas v Crucible Materials Corp., 73 AD3d 1323, 1325 [2010]; Matter of Bunnell v Sangerfield Inn, 35 AD3d at 1023 ).

2012Under the circumstances, there is substantial evidence supporting the Board’s conclusion that claimant did not sufficiently allege an unanticipated change in his medical condition warranting the reopening of his claim (see Matter of Thomas v Crucible Materials Corp., 73 AD3d 1323, 1325 [2010]; Matter of Bunnell v Sangerfield Inn, 35 AD3d at 1023 ).

1963It is clear that to the extent a lump-sum award has not been exhausted by subsequent reduced earnings the employer or carrier would receive a credit against an award made upon the reopening of a claim (Matter of Cretella v. New York Dock Co., 289 N. Y. 254 , mot. for rearg. den. 289 N. Y. 848 ; Matter of Metcalf v. Firth Carpet Co., 196 App. Div. 790).

1950(Matter of Cretella v. New York Dock Co., 289 N. Y. 254 .) Award and decision unanimously affirmed, with costs to the Workmen’s Compensation Board.

2017As to the penalty imposed, the Board may impose a penalty against a party who institutes or continues a proceeding in respect of a claim without reasonable ground (see Workers’ Compensation Law § 114-a [3] [i]), and the Board’s imposition of a penalty under this statute will not be disturbed if supported by substantial evidence (see Matter of Banton v New York City Dept. of Corr., 112 AD3d 1195 , 1196 [2013]).

2017Ctr., 117 AD3d 1311 , 1312 [2014]).

2006Although at the suppression hearing an officer testified that he arrested defendant upon a description that included a gray sweatshirt, whereas at trial the undercover officer testified that she transmitted a description that did not include the sweatshirt, counsel’s failure to request a reopening of the hearing did not deprive defendant of effective assistance (see People v Maldonado, 25 AD3d 423, 424 [2006], lv denied 6 NY3d 836 [2006]).

2005The People, having had a fair and full opportunity to present evidence at the hearing, are not entitled to a reopening of the hearing to further explore specific issues that were known to the People prior to the hearing, explored in depth on direct and cross-examination of the hearing witnesses, and argued extensively by both parties at the conclusion of the hearing testimony (see, People v Crandall, 69 NY2d 459 [1987]).

1998The reopening was timely and as this Court noted in Matter of Murray v Scully ( 170 AD2d 829, 831 , lv denied 78 NY2d 856 ), the Court of Appeals in Matter of Hartje v Coughlin ( 70 NY2d 866 ) did “not limit the power of an agency to conduct a new hearing before it issues a final determination and before an inmate seeks judicial review” (see, Matter of Laureano v Kuhlmann, 75 NY2d 141, 148 ).

1998The reopening was timely and as this Court noted in Matter of Murray v Scully ( 170 AD2d 829, 831 , lv denied 78 NY2d 856 ), the Court of Appeals in Matter of Hartje v Coughlin ( 70 NY2d 866 ) did “not limit the power of an agency to conduct a new hearing before it issues a final determination and before an inmate seeks judicial review” (see, Matter of Laureano v Kuhlmann, 75 NY2d 141, 148 ).

1998The reopening was timely and as this Court noted in Matter of Murray v Scully ( 170 AD2d 829, 831 , lv denied 78 NY2d 856 ), the Court of Appeals in Matter of Hartje v Coughlin ( 70 NY2d 866 ) did “not limit the power of an agency to conduct a new hearing before it issues a final determination and before an inmate seeks judicial review” (see, Matter of Laureano v Kuhlmann, 75 NY2d 141, 148 ).

1997Effective in 1985, this principle was ultimately adopted in the Family Court Act in section 303.2 which expressly made applicable in Family Court proceedings the provisions of CPL article 40 making a previous prosecution a bar to subsequent relitigation of the same conduct or transaction. 2 The New York decisions following the Breed case (supra) have been uniform in holding that the Double Jeopardy Clauses of the Federal and State Constitutions protect against a second prosecution for the same offense and are applicable to juvenile court proceedings (see, e.g., Matter of John P., 74 AD2d 403 [

1997Effective in 1985, this principle was ultimately adopted in the Family Court Act in section 303.2 which expressly made applicable in Family Court proceedings the provisions of CPL article 40 making a previous prosecution a bar to subsequent relitigation of the same conduct or transaction. 2 The New York decisions following the Breed case (supra) have been uniform in holding that the Double Jeopardy Clauses of the Federal and State Constitutions protect against a second prosecution for the same offense and are applicable to juvenile court proceedings (see, e.g., Matter of John P., 74 AD2d 403 [

1997Effective in 1985, this principle was ultimately adopted in the Family Court Act in section 303.2 which expressly made applicable in Family Court proceedings the provisions of CPL article 40 making a previous prosecution a bar to subsequent relitigation of the same conduct or transaction. 2 The New York decisions following the Breed case (supra) have been uniform in holding that the Double Jeopardy Clauses of the Federal and State Constitutions protect against a second prosecution for the same offense and are applicable to juvenile court proceedings (see, e.g., Matter of John P., 74 AD2d 403 [

1997Effective in 1985, this principle was ultimately adopted in the Family Court Act in section 303.2 which expressly made applicable in Family Court proceedings the provisions of CPL article 40 making a previous prosecution a bar to subsequent relitigation of the same conduct or transaction. 2 The New York decisions following the Breed case (supra) have been uniform in holding that the Double Jeopardy Clauses of the Federal and State Constitutions protect against a second prosecution for the same offense and are applicable to juvenile court proceedings (see, e.g., Matter of John P., 74 AD2d 403 [

1997Effective in 1985, this principle was ultimately adopted in the Family Court Act in section 303.2 which expressly made applicable in Family Court proceedings the provisions of CPL article 40 making a previous prosecution a bar to subsequent relitigation of the same conduct or transaction. 2 The New York decisions following the Breed case (supra) have been uniform in holding that the Double Jeopardy Clauses of the Federal and State Constitutions protect against a second prosecution for the same offense and are applicable to juvenile court proceedings (see, e.g., Matter of John P., 74 AD2d 403 [

1989Co., 243 App Div 496, 499 , affd 268 NY 502 ).

1989Co., 243 App Div 496, 499 , affd 268 NY 502 ).

1988Moreover, the proposed testimony of the petitioner’s physician did not fall within the ambit of "newly discovered evidence” which would warrant the reopening of the hearing (see, Romeo v Romeo, 39 AD2d 559, 560 ).

1988Although the appellate courts do not encourage the reopening of a hearing (People v Robinson, supra, at 947 ), judicial economy and procedural precedent apparently dictate this court to now permit the People to establish by clear and convincing evidence an independent source for an in-court identification by the complainant.

1988Accordingly, the People are granted their request to present evidence of an independent source at a new Wade hearing (People v Riley, supra, at 532; People v Clay, supra).

1988Secondly, we agree that the imposed penalty of dismissal was neither arbitrary nor capricious or such as would shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222 ).

1987Nor was it an abuse of discretion to deny the plaintiff’s request for a second adjournment or a reopening of the hearing in order to take the testimony of the recalcitrant process server (see, Cuevas v Cuevas, 110 AD2d 873 ).

1987The People were, in effect, not given a full and fair opportunity to inquire into the issue of independent source at the initial hearing, and, therefore, the reopening of the hearing was justified (see, People v Havelka, 45 NY2d 636 ).